While defining the provision of Section 378 CrPC, which deals with the matter of appeals in cases investigated and prosecuted by the CBI, a three-judge bench headed by Chief Justice K.G. Balakrishnan ruled that Parliament by the 1973 amendment in subsection 2 of Section 378 had “consciously” made a clear division between the powers of the Centre and the states in filing appeals.
“In our opinion, the legislature has maintained a mutually exclusive division in the matter of appeals from an order of acquittal inasmuch as the competent authority to appeal from an order of acquittal in two types of cases referred to in subsection 2 (referred to the CBI) is the Central government, and the authority of state governments in relation to such cases has been excluded,” the court said.
Besides the CJI, the bench also comprised Justices R.M. Lodha and B.S. Chauhan.
In relation to the Lalu Yadav case, the court said as a “necessary corollary” of this provision, “it has to be held, and we hold, that the state government of Bihar is not competent to direct its public prosecutor to present an appeal against the judgement of December 18, 2006 passed by CBI special judge, Patna”, acquitting the RJD leader and his wife in the Rs 46 lakh disproportionate assets case, an offshoot of the Rs 950-crore fodder scam.
Since the CBI had not filed the appeal, the Nitish Kumar government approached the Patna high court to challenge the special judge’s acquittal order, accusing the Centre of not preferring an appeal against Mr Lalu Yadav as he was an important minister in the Union government (UPA-1) at the time.
After the high court entertained the appeal, Mr Lalu Yadav and his wife, a former state chief minister, approached the Supreme Court in 2007 challenging the state’s power to appeal in CBI cases.
Strangely, the CBI, which did not prefer an appeal, challenged in the Supreme Court the high court order taking cognisance of the Bihar government’s SLP.
Several senior Supreme Court advocates criticised the judgment, saying it would have far-reaching consequences in relation to “corruption” cases against politicians as the party in power at the Centre would not allow the CBI to file appeals against politicians who mattered in “power equations” at the Centre, or those belonging to the ruling party.
Senior advocate Prashant Bhushan, who had been taking up several corruption cases in the Supreme Court, said “this judgment is totally contrary to several settled cases by the court earlier, including the famous Nandini Satpathy verdict, that gives the power to every citizen, including state governments, to file appeals if the CBI does not.”
“If due to some ‘dishonest’ reasons the CBI will not file an appeal, would it mean that the trial court order will not be challenged at all in high courts? It will have far-reaching adverse consequences in the fight against corruption,” Mr Bhushan said.
Said senior advocate P.P. Rao said: “This judgment has the effect of taking away the right of states to file appeals, and the states are the loser.”
S.S. Negi